Eugene has been kind enough to invite me to blog a bit about a book I’ve written called The Legal Analyst. In the coming days I’ll write about some of the ideas in the book. Today I’ll say something about the rationale for the project (and at the end of this entry I’ll offer a historical comment about the legal implications of selling a piano to a house of ill fame. So there will be something for everyone.).
The book is a kind of user's manual for ideas about the law. The ideas aren’t doctrinal categories like contract and tort. They’re tools for analysis that cut across categories like contract and tort. A lot of the chapters involve economic principles, but many others don’t; there’s a good bit of cognitive psychology, political science, jurisprudence, etc. The result is meant to be useful to lots of people: law students, lawyers, scholars, and laymen with an interest in the legal system (perhaps not a bad description of the readership of this blog).
The style of teaching in the book somewhat resembles the approach of my chess website and books — lots of examples meant to build the reader’s ability to recognize patterns. But since most people aren’t as interested in the intersection between law and chess as I am, I won’t linger on the point!
Let me instead pursue the theory behind the book with a question. How should law school be organized? Isn’t it odd that the first-year curriculum is the same almost everyplace, and that it’s structured as it is? A couple of schools have started to experiment with minor innovation, but there still isn’t much of it. Here’s what I might suggest: a year spent just on analytical methods, another year spent entirely on various forms of rhetoric, and then one year on substantive legal doctrines (some of which would also have been taught along the way during the other two years). Not that every school should do this, but shouldn’t someplace do it? Perhaps you have other ideas of your own. I see no reason to assume that one size fits all. Maybe it’s a stag hunt, which is an idea discussed in the book that I’ll talk about later in the week. Or a case of path dependence.
I said a school might usefully spend the first year on analytical methods. That’s the part of my suggestion that relates to the book. There are, in general, two sorts of things one learns at a law school. You learn lots of legal rules — principles that tell you whether a contract is valid, how to tell murder from manslaughter, etc. And you learn how to use tools for thinking about legal problems — ideas such as the prisoner’s dilemma, or the differences between rules and standards, or the notion of a baseline problem, or the problem of hindsight bias, and so on. Those tools for thought are the more interesting and useful part of a legal education, and the greater share of the fun of it, at least if they're taught properly.
Law school courses could be organized around those tools rather than legal subjects, so that in the first year everyone would take a course on the prisoner’s dilemma or on game theory, a little course on rules and standards, a course on cognitive psychology, and so forth, and in each of those classes one would learn, along the way, a bit about contract law, a bit about tort law, etc. But instead law school is carved up the other way around: by legal topics, not by tools. Maybe there are good reasons for teaching law this way, but a side effect is that most students never get that hang of the tools that ought to be the best payoff of the enterprise. They just hear about them in passing. Maybe any given idea gets mentioned by a teacher sometime, or maybe not; maybe it comes up again later, or maybe it doesn’t.
Anyhow, whether or not it makes sense to carve up legal education by methods rather than substantive subjects, I do think there’s at least a place for a book that does this. I hope so, at any rate, because that’s what I’ve tried to write.
Another problem the book means to address has to do with the gigantic volume of legal scholarship churned out every year by law professors. The one percent of it that would be of most interest to a student or to a generalist lawyer or law professor — the portion that amounts to a helpful analytical tool, or to a charming illustration of the use of one — is not so easily found. I’ve tried to round up as much of that one percent as I can (I’ve left out a lot of it, of course), and to explain it as accessibly as possible.
In some cases I’ve enlisted the help of other professors who already had written outstanding explanations of the issues I wanted to cover. The chapter on slippery slopes, for example, is co-authored with Eugene, and really is nothing but an adaptation of his scholarly work on the subject. I’m very grateful to him and to my other co-authors for helping out, and hope that in return I may bring their ideas to some people who might not have heard about them otherwise.
Tomorrow I’ll start talking about some of the ideas in the book, but enough about it for today. As long as I’m here, though, I’ll venture a comment on an issue Eugene raised last week: tort and criminal liability for supplying someone with the means to commit a crime. Eugene didn’t mention another interesting angle on the problem, namely the contractual side. A contract to help someone commit a crime is unenforceable. A very classic example is the old English case of Appleton v. Campbell,  2 C & P 347. It mustn’t be paraphrased; only direct quotation will do:
Assumpsit for board and lodging. The defence was, that the defendant was an immodest woman, and used the lodging for the purposes of prostitution, to the knowledge of the plaintiff.
To substantiate this, another female, who lodged in the house, and who was called for the plaintiff, proved, on her cross-examination, that the defendant was in the habit of receiving male visitors, and that the plaintiff used sometimes to open the door for them; and that the plaintiff told her, that the defendant was an immodest woman.
Abbott, C.J. — If a person lets a lodging to a woman, to enable her to consort with the other sex, and for the purposes of prostitution, he cannot recover for the lodging so supplied. But if the defendant had her lodgings there, and received her visitors elsewhere, the plaintiff may recover, although she be a woman of the town, because persons of that description must have a place to lay their heads; but if this place was used for immoral purposes, the plaintiff cannot recover.
There is a distinctively American version of this problem, too, from when the world was young: someone sells a piano to a house of ill fame, and the proprietor of the establishment defaults on the obligation to pay for it. Is the contract enforceable? The case raises nice questions about the relationship between the piano playing in a brothel and the other activities carried out there. (Not long ago Robert Hughes said, “One gets tired of the role critics are supposed to have in this culture: It's like being the piano player in a whorehouse; you don't have any control over the action going on upstairs.”)
This precise issue doesn’t generate much litigation now, probably (I claim no expertise) because no modern brothel can be bothered to hire a piano player, or for that matter a player piano — unless, I suppose, it’s going for retro charm, sort of like Camden Yards. But once upon a time there was a fun if minor division of authority on this little problem of pianos. See Hollenberg Music Co. v. Berry, 106 S.W. 1172 (Ark. 1907); Colburn v. Coburn, 211 S.W. 248 (Tex. Civ. App. 1919).